Are vegans protected by discrimination legislation?
Whilst many of us will be tucking into turkey and Christmas pudding in a few sleeps’ time, an increasing number of vegans will be looking forward to more inventive festive fare, possibly including “Roasted Stuffed Cauliflower”, “No-Beef Wellington” (showcasing a filling of beetroot), and a clever twist on chocolate cake using avocados in place of butter.
Veganism is experiencing high growth across the UK, with Britain’s vegan population increasing from 150,000 to 542,000 in the 10 years to 2016, according to a survey carried out by The Vegan Society. The annual call to experiment with a vegan diet for a month following the Christmas and New Year festivities – “Veganuary” – saw 168,000 participants in January this year. Female millennials are the main converts, together with many celebrities including Ariane Grande, Natalie Portman, Woody Harrelson and Ellen DeGeneres.
Some change to veganism for reasons relating to health and weight management. However, of the 542,000 vegans identified in the 2016 survey, 360,000 described themselves as “Lifestyle Vegans”, motivated by concerns about animal welfare and the environment. Lifestyle Vegans commit to buying cosmetics, clothes and other items that are free from animal products and animal testing.
Such is the impact of veganism that it is now taking centre stage in the Employment Tribunal (“ET”); where it was reported earlier this month that an ET has been asked to decide whether veganism is a “philosophical belief” and therefore protected by discrimination legislation.
Jordi Casamitjana describes himself as an “ethical vegan”. He distinguishes himself from those who simply eat a vegan diet due to health concerns, stating: “I care about the animals and the environment and my health and everything. That’s why I use the term “ethical veganism” because for me, veganism is a belief and affects every single aspect of my life.”
Mr Casamitjana was dismissed by his employer, the League Against Cruel Sports. He claims that he had discovered that his employer invested its pension funds in companies involved in animal testing. He says that he raised this issue with his managers but that nothing changed, and so he disclosed the information to his colleagues. He alleges that he was sacked as a result, and that his dismissal amounts to discrimination on the grounds of his philosophical belief in ethical veganism.
The League Against Cruel Sports is defending the claim on the basis that Mr Casamitjana was dismissed for gross misconduct, and that “to link his dismissal with issues pertaining to veganism is factually wrong”.
When the Employment Tribunal sits in March, it will be considering whether or not “ethical veganism” amounts to a “philosophical belief” akin to a religious belief under the Equality Act 2010. If it agrees with Mr Casamitjana on this point, then the case will proceed, at a later date, to a full trial to consider whether Mr Casamitjana was discriminated against.
So how likely is it that Mr Casamitjana will succeed in his argument?
When the Equality and Human Rights Commission produced its first draft Code of Practice on the Equality Act 2010, it gave the following as an example of a philosophical belief:
“A person who is a vegan chooses not to consume animal products of any kind. That person eschews the exploitation of animals for food, clothing, accessories or any other purposes and does so out of an ethical commitment to animal welfare. This person is likely to hold a belief that is covered by the [Equality] Act.”
However, this example caused a furore in the press, and the Government disagreed with the interpretation. The example therefore did not appear in the final version of the Code of Practice. However, the interpretation of the Equality Act is a matter for the courts, and a broad range of beliefs has been held to fall within the definition of “philosophical belief”. In one case an ET decided that a fervent belief in anti-fox hunting and anti-hare coursing amounted to a philosophical belief. The ET accepted that the Claimant’s beliefs about fox hunting fell within his general commitment to the sanctity of life which, importantly, also included his views on veganism, environmentalism and animal rights activism. In another case, the Claimant argued that his belief relating to climate change and the need to cut carbon emissions was “not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears”. The Employment Appeal Tribunal (“EAT”) agreed that his belief was a philosophical belief, and laid down the following principles based on existing case law:
- the belief must be genuinely held;
- it must be a belief, not an opinion or viewpoint based on the present state of information available;
- it must be a belief as to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance; and
- it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Based on previous case law and the principles distilled by the EAT, Mr Casamitjana’s claim must have a fair chance of succeeding. As veganism continues to grow, this is going to be an issue which employers increasingly will have to take note of. Whilst dismissing someone because of their belief in veganism may seem extreme, harassment of vegans for not eating meat or dairy or failing to provide vegan food at firm related meetings is likely to be more common in the workplace. If lifestyle veganism is found to be a protected characteristic this opens up new concerns for businesses. For example, failure to provide vegan choices in work related meetings or at the Christmas party could result in claims of discrimination if their dietary requirements are overlooked.
For further help or advice or to discuss the issues raised in this article, please contact Louise Connacher.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.